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Family successfully challenge homemade Will in the High Court

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Iris Jolly died in October 2010, leaving her whole estate, worth around £500,000, to her two friends Richard and Pamela Phythian. She was said to have done this because her relatives were not taking enough notice of her in her final years.

Iris was 80 when she passed away and had made her Will less than two months before she died. The Will had been prepared by Richard Phythian, and appointed him the sole executor. Solicitors were not instructed to prepare it, and this was the only Will that she had ever made.

Richard and Pamela Phythian argued that they had done a great deal for her in her final years, and that Mrs Jolly was rightly disgruntled with her relatives.

Iris Jolley’s niece, Mrs Turner, had started the Court case, arguing that the frail 80-year-old lacked the mental capacity to make a valid will and that she did not 'know and approve' of its contents. Her legal team argued that her state of mind at the time was “severe, even psychotic, depression or pathological bereavement reaction”, following the deaths of her late brother and husband.

Judge Rose in the High Court, ruling on the case, concluded that when she signed the Will, Iris “was suffering from an affective disorder brought about by her deep grief at the death of her brother, combined with her continuing fragile mental state arising from her advanced age, her physical frailty and her continuing grief for her husband”. She accepted both arguments from the family that Iris lacked mental capacity to make the Will, and did not know and approve of the contents of the Will.

The Will was therefore overturned and Iris’ estate now passes under the rules of intestacy, which apply when someone dies without leaving a Will. Under these rules, the estate will now pass to Iris’ relatives.

This case highlights the dangers of homemade Wills, and I would encourage everyone who is thinking of making a Will, to instruct solicitors to do it. A solicitor will not only make sure that the Will is drafted properly, but also makes sure that someone is giving instructions for a Will free from any influence. 

If there is any doubt in relation to someone’s mental state, a solicitor will also make sure that there is medical evidence obtained to ensure that person’s capacity, before the Will is signed.

The cost of making a Will with a solicitor if very small, and little in comparison to the legal costs that can be incurred when everything goes wrong, as happened in this case. As a solicitor specialising in Inheritance Disputes, and also as a registered member of the Association of Contentious Trusts and Probate Specialists (ACTAPS), I recognise that it is important that the cost implications of cases like this are considered from the outset. 

By inheritance disputes solicitor, Heather Korwin-Szymanowska

Anyone facing this kind of inheritance dispute, or wishing to contest a will for any other reason, should always seek specialist legal advice at the earliest opportunity. For a fixed fee of £49.95, you can have a 30 minute appointment with either myself, or another solicitor who specialises in your kind of case. The appointment can be either on the telephone, or face to face, depending on your preference.  We will take some details from you before the appointment, and then the solicitor will discuss your case with you, and what your options are. If your case is something that we can then help you further with, we can then discuss your funding options with you.